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The Ontario Human Rights Commission (OHRC) makes the following deputation in response to the Toronto Police Service’s (TPS) Discussion Paper in which it proposes to expand the deployment of Conducted Energy Weapons (CEWs) to on-duty primary response unit constables and on-duty constables from designated specialized units.

The OHRC does not support the proposed expanded use of CEWs as set out in the Discussion Paper. The OHRC submits that:

1) The use of CEWs raises serious human rights concerns;

2) TPS must develop and adopt standards, guidelines, policies and strict directives to minimize the impact of CEWs on people protected under Ontario’s Human Rights Code, especially people with perceived and actual mental health disabilities or addictions; and

3) TPS should not expand the use of CEWs until it undertakes the studies and adopts the safeguards repeatedly recommended by the OHRC, the Independent Review by the Honourable Justice Frank Iacobucci, and many Coroners’ Inquests.

The use of CEWs raises serious human rights concerns because people with mental health disabilities tend to have more frequent contact with police, and may be more likely to be tasered because of behaviours and responses to police instructions that appear “unusual” or “unpredictable.” They may also be more likely to die after being tasered.

The OHRC has repeatedly called on the government and police services to adopt and implement all necessary standards, guidelines, policies and strict directives to end discriminatory use of force on people with mental health disabilities or addictions. This includes requiring police officers to de-escalate, use communication strategies, and refrain from using force for as long as possible. The OHRC continues to submit that de-escalation techniques are an essential component of minimizing the adverse impact of CEW use on persons with perceived and actual mental health disabilities.

Unfortunately, the Discussion Paper does not adequately situate the TPS’ proposed expanded use of CEWs within broader, concrete efforts to end discriminatory use of force on people with mental health disabilities or addictions. Tasers are weapons and, as such, should be subsidiary rather than central to the TPS’ commitment to de-escalation and non-discriminatory policing.

As a result of these risks, the OHRC maintains its longstanding position that the government and police services, including TPS, must adopt and implement, to the point of undue hardship, all necessary standards, guidelines, policies and strict directives to minimize the adverse impact of the use of CEWs on people with mental health disabilities or addictions, or people who are intoxicated.

Despite its claims otherwise, the current TPS proposal fails to address crucial safeguards and further studies recommended by the OHRC, the Honourable Justice Frank Iacobucci in his report into police encounters with people in crisis (Iacobucci Report), and many Coroners’ Inquests.

The TPS proposal does not address the OHRC’s concerns about the use of CEWs on persons with mental health disabilities or addictions

The OHRC has consistently cautioned the government and police forces against increased use of CEWs without proper research and safeguards to protect persons with mental health disabilities or addictions. However, despite the trend of increased CEW use against persons with mental health disabilities, the Discussion Paper does not address this issue.

It is essential that the TPS—in conjunction with the Ministry of Community Safety and Correctional Services (MCSCS)—take steps to the point of undue hardship to minimize the adverse impact of use of CEWs on persons with perceived and actual mental health disabilities and addictions.

In 2011, TPS reported that 41.9% of CEW use incidents involved persons whom officers believed to be “emotionally disturbed” or who were perceived as suffering from the combined effects of emotional disturbance/mental disorder and alcohol and/or drug use. By 2016, that number had climbed to 48.6%.[1] The Discussion Paper makes no proposal to address this issue.

There is also evidence suggesting that people experiencing “acute psychiatric decompensation” or who are in a “drug induced toxic state” may be at a greater risk of death when tasered.[2] One Canadian study found that people with addictions may be disproportionately more likely to die after being tasered. The researchers found that 16 of 26 taser-related deaths in Canada involved persons with “chronic drug problems.”[3]

In the Discussion Paper, the TPS proposes to expand the use of CEWs in accordance with MCSCS guidelines. However, the OHRC has repeatedly cautioned that the subjectivity and risk threshold for the use of CEWs set out in those guidelines (i.e. “threatening or assaultive behaviour”) may have an adverse impact on persons with mental health disabilities. In particular, they may be more likely to exhibit behaviour that is perceived as threatening or assaultive by virtue of their condition. This behaviour may also affect their ability to comprehend and respond to police officer requests or instructions. The OHRC has called on MCSCS to review and revise its guidelines, but to date, this has not taken place. Compliance with current MCSCS guidelines is not sufficient to prevent the discriminatory effects of expanded CEW use.

Police services, including the TPS, must also have policies that specifically state when CEWs may be used and specify inappropriate uses. These policies should specifically address the use of CEWs on vulnerable individuals such as people with mental health disabilities, and the potential increased risk of death for people with mental health disabilities or who are intoxicated.

The TPS proposal does not sufficiently address the Iacobucci Report recommendations

The OHRC cannot support the TPS’s proposal to expand the use of CEWs in the absence of the safeguards and research recommended in the Iacobucci Report. This report, which was written at the request of TPS and released over three years ago, made 84 recommendations. The vast majority highlighted the need to develop policies and practices to address the needs of people in crisis who come into contact with the police, including better use of force procedures, and education to emphasize de-escalation techniques.

The Iacobucci Report also addressed the use of CEWs and concluded that:

The paucity of reliable data regarding the effects of CEWs on individuals with medical conditions, people in crisis and subjects with prescription medications, illegal drugs or alcohol in their system makes it difficult for police to predict whether a given subject in a real-life interaction will suffer serious consequences from exposure to a CEW charge.

The absence of definitive research into the risks of CEWs for populations who are likely to encounter the police in non-criminal contexts is a problem when considering whether CEWs should be used against people in crisis. Some people with mental illness may be particularly vulnerable to the potentially serious effects of CEWs as they may present with many of the risk factors (existing medical conditions, prescription medications, substance abuse issues, high levels of agitation) when they encounter police during times of crisis. As many stakeholders have said, police are neither equipped nor expected to diagnose medical or psychological conditions. As such, first responders may not be able to identify heightened risk factors in an individual before deciding whether to employ a CEW.

As a result of these findings, Justice Iacobucci acknowledged the potential benefits of CEWs, but expressed caution on their expanded use, concluding that:

It is unclear, presently, to what extent CEWs may cause death, and the concern that CEWs may be abused is well-justified. Accounts of misuse of CEWs by police, albeit relatively rare statistically, are not hard to find, within the TPS and elsewhere. My conclusion is that the TPS should proceed cautiously in this area, but that it should nonetheless proceed with expanded availability of CEWs on a pilot basis, with careful safeguards to help arrive at better answers to the questions posed. My detailed recommendations on these issues are below. [emphasis added]

Based on this conclusion, Justice Iacobucci made 17 detailed recommendations on the use of CEWs, including the need to further study the effects of CEWs on persons in crisis (Recommendation 55) and defining the safeguards necessary to put a pilot project of expanded CEW use into place (Recommendation 59).[4]

Despite its claims otherwise, the current TPS proposal does not align with Justice Iacobucci’s recommendations. Indeed, TPS has specifically rejected his recommendations to further study the effects of CEWs on vulnerable groups (such as persons in crisis).[5] And while TPS claims that it has implemented Justice Iacobucci’s Recommendation 59 for a pilot project in an “alternative form,” the Discussion Paper does not refer to any form of “pilot project” – with time limits or limited by the number of divisions, as envisioned by the Iacobucci Report.[6] Instead, it simply refers to “expanded deployment.”

The TPS Proposal does not sufficiently respond to Coroners’ Inquest recommendations

In the Discussion Paper, the TPS relies on recommendations for expanded CEW use in “eighteen inquests.” Again, however, the TPS proposal fails to address the ancillary recommendations of those inquests that would help to ensure that CEWs are deployed in a way that does not discriminate against persons with mental health disabilities and/or addictions.

For instance, in the 2014 Inquest into the Deaths of Reyal Jardine-Douglas, Sylvia Klibingaitis, and Michael Eligon, the jury recommended that MCSCS “commission a study of CEWs to determine if there are any special risks or concerns associated with the use of this device on EDPs [Emotionally Disturbed Persons].” The TPS proposal does not indicate whether such a study has occurred or has been considered.

In the 2017 Inquest into the death of Andrew Loku, which the Discussion Paper specifically relies on, the jury did make a recommendation to equip patrol cars with “less lethal weapons,” including potentially CEWs. However, that recommendation was made in the context of broad recommendations to implement police training to deliver equitable services to persons with mental health disabilities and/or addictions. Such training would be a necessary element of any expanded use of CEWs. In addition, the jury specifically recommended that MCSCS fund and continue to study the use and deployment of less-lethal use of force options such as CEWs. There is no indication that TPS has inquired into such studies as part of its proposal to expand the use of CEWs.

Finally, the Discussion Paper relies on some evidence from the 2004 Coroner’s Inquest into the death of Jerry Knight, which predates the Iacobucci Report. Again, however, the jury recommendations arising out of that inquest did not recommend the expanded use of CEWs, but instead encouraged “increased research and training in Excited Delirium and restraint; including, the advisability of using the Taser in drive stun mode and pepper spray.”

In the absence of the types of protections and further research outlined in these Coroners’ inquest recommendations, the OHRC does not support the expanded use of CEWs as outlined in the Discussion Paper.

[3] Temitope Oriola, Nicole Neverson & Charles T. Adeyanju, “‘They should have just taken a gun and shot my son’: Taser deployment and the downtrodden in Canada” (2012) 18(1) Social Identities 65.

[4] RECOMMENDATION 55: The TPS advocate an interprovincial study of the medical effects of CEW use on various groups of people (including vulnerable groups such as people in crisis), as suggested by the Goudge Report.

RECOMMENDATION 59: The TPS consider conducting a pilot project to assess the potential for expanding CEW access within the Service, with parameters such as:

(a) Supervision: at an appropriate time to be determined by the TPS, CEWs should be issued to a selection of front line officers in a limited number of divisions for a limited period of time with the use and results to be closely monitored;

(b) Cameras: all front line officers who are issued CEWs should be equipped either with body-worn cameras or audio/visual attachments for the devices;

i. frequency and circumstances associated with use of a CEW, including whether it was used in place of lethal force;

ii. frequency and nature of misuse of CEWs by officers;

iii. medical effects of CEW use; and

iv. the physical and mental state of the subject;

(d) Analysis: data from the pilot project be analyzed in consideration of such factors as:

i. whether CEWs are used more frequently by primary response units, as compared to baseline information on current use of CEWs by supervisors;

ii. whether CEWs are misused more frequently by primary response units, as compared to baseline information on current use of CEWs by supervisors;

iii. the disciplinary and training responses to misuses of CEWs by officers and supervisors;

iv. whether use of force overall increased with expanded availability of CEWs in the pilot project;

v. whether use of lethal force decreased with expanded availability of CEWs in the pilot project; and

vi. whether TPS procedures, training or disciplinary processes need to be adjusted to emphasize the objective of reducing deaths without increasing the overall use of force or infringing on civil liberties; and

(e) Transparency: the TPS report the results of the pilot project to the Toronto Police Services Board (TPSB), and make the results publicly available.